People ex rel. Kuhn v. Common Council

• Decision Date: 08 June 1888
• Court: Michigan Supreme Court
• Parties: PEOPLE EX REL. KUHN v. COMMON COUNCIL.

38 N.W. 470

70 Mich. 534

PEOPLE EX REL. KUHN v. COMMON COUNCIL.

Supreme Court of Michigan

June 8, 1888

Application for writ of mandamus.

LONG J.

The relator, Ferdinand Kuhn, a resident of the city of Detroit, makes application for mandamus to the common council of the city of Detroit, and claims "that he is engaged in the business of retailing brewed and malt liquors at No. 18 Michigan avenue, city of Detroit and desires to continue such business during the next year ensuing the 1st day of May, 1888." On April 12, 1888 relator, by his attorney, presented to the common council of the city of Detroit a bond executed by relator, with two sureties, to enable him to comply with the provisions of act No. 313 of the Public Acts of 1887, and the said bond had indorsed thereon the affidavit of justification by such sureties. Michael Martz, one of said sureties, is the president of the Detroit Brewing Company, a corporation organized under the laws of the state of Michigan, engaged in the manufacture and sale of brewed and malt liquors in said city of Detroit. William P. Ratigan, the other surety, is secretary of the Bavarian Brewing Company, a corporation organized under the laws of this state, and also engaged in the manufacture and sale of brewed and malt liquors in the city of Detroit, and both said sureties are residents of the city of Detroit. Section 8 of said act No. 313 provides that "there shall also be annexed to each bond required by this act an affidavit of each surety thereto, which affidavit shall state that the affiant is not engaged, either as principal agent, or servant, in the sale of any liquor mentioned in this act; that he is not a surety upon any other bond required by the provisions of this act," etc. The affidavit annexed to the bond so presented to the common council of the city of Detroit reads as follows: " State of Michigan, County of Wayne-ss.: Michael Martz and William P. Ratigan, sureties on the above bond, being duly sworn, each for himself doth depose and say that he is a male resident and freeholder of the township, village, or city in which such bond is offered, and that he does not hold any elective or appointive office in any county, city, or village or township in this state, and that he is worth, in the real estate situated within the county in which such business is proposed to be carried on, a sum equal to the amount of the bond, over and above all indebtedness and exemptions from sale or executions." This bond, with the affidavit annexed, as above set forth, was presented to the common council of the city of Detroit, who refused to accept the same, for the reason that the affidavits of the sureties annexed to said bond are not in accordance with the requirements of the statute. The bond was in the form prescribed by the statute, with a penalty of $3,000. An order to show cause was issued by this court at the last term, and the respondent admits by its answer the facts set forth in the petition of the relator. The affidavit is in substantial compliance with the statute, except that it omits to state that each surety is not engaged, either as principal, agent, or servant, in the sale of any liquors mentioned in the act, and that neither is surety upon any other bond required by the provisions of the act.

It is claimed by the counsel for the relator that said provision of the act is unconstitutional and void, in that it is in conflict with the provisions of the constitution of this state that "no person shall be deprived of life liberty,...